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Adjudicating Revolution

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Adjudicating Revolution

Courts and Constitutional Change

9781788971324 Edward Elgar Publishing
Richard S. Kay, Wallace Stevens Professor of Law Emeritus and Oliver Ellsworth Research Professor, University of Connecticut School of Law, US and Joel I. Colón-Ríos, Professor of Law, Victoria University of Wellington, New Zealand
Publication Date: 2022 ISBN: 978 1 78897 132 4 Extent: 256 pp
Lawyers usually describe a revolution as a change in a constitutional order not authorized by law. From this perspective, to speak of a ‘lawful’ or an ‘unlawful’ revolution would seem to involve a category mistake. However, since at least the 19th century, courts in many jurisdictions have had to adjudicate claims involving questions about the extent to which what is in fact a revolutionary change can result in the creation of a legally valid regime. In this book, the authors examine some of these judgments.

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Contents
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Lawyers usually describe a revolution as a change in a constitutional order not authorized by law. From this perspective, to speak of a ‘lawful’ or an ‘unlawful’ revolution would seem to involve a category mistake. However, since at least the 19th century, courts in many jurisdictions have had to adjudicate claims involving questions about the extent to which what is in fact a revolutionary change can result in the creation of a legally valid regime. In this book, the authors examine some of these judgments.

Adjudicating Revolution includes, first, cases in which courts decide to recognize the actions of a de facto regime under a doctrine of necessity, with the objective of maintaining public order. Second, cases where courts directly confront the question of whether a revolution has resulted in the creation of a genuinely new constitutional order. Finally, cases in which courts are asked by state officials to recognize, in advance, the validity of otherwise revolutionary changes (i.e. the irregular creation of a new constitution) proposed by state officials. The book examines, from a theoretical and comparative perspective, judgments from North and Latin America, Europe, Asia, and Africa. Placing the cases in their historical and political context, the authors provide an understanding of key moments in the constitutional history of the relevant jurisdictions.

The resulting analysis will be of interest to academics and graduate students of comparative constitutional law and constitutional theory, political science, and related disciplines.
Critical Acclaim
‘Adjudicating Revolution is an erudite, original and important work on the legal mechanisms by which revolutions become entrenched into societies with the help of judges from the pre-revolutionary time, as well as by other means. The authors are professors of law who take us beyond law into the realms of political science, sociology and philosophy to explore the underpinnings of successful and unsuccessful revolutions in a fascinating work that spans time and place.’
- Vivian Curran, International Academy of Comparative Law and University of Pittsburgh, US

‘The world’s constitutional history is littered with coups and revolutions. Objecting to the constitution in place, politicians and military officers attempt to, purport to, or actually do start to implement policies under the guise of law. Soon enough courts are called upon to determine the legal status of those actions. Through detailed case studies Professors Kay and Colón-Ríos show what the courts have done. Do they invoke law or only the simulacrum of law—and does the distinction matter? The questions raised in this book go to the very foundations of constitutional thinking and the work deserves close attention by constitutional scholars everywhere.’
– Mark Tushnet, Harvard Law School, US

‘Two of our clearest analysts of the source of constitutional authority join forces in a tour de force. Highly recommended!’
– Tom Ginsburg, University of Chicago Law School, US
Contents
Contents: 1. Introduction: the law of revolutions 2. Confederate States of America, 1861–96 3. Argentina, 1865–1990 4. Colombia, 1957–2003 5. Rhodesia, 1965–70 6. Spain and Catalonia, 1935–2019 7. Grenada, 1985 8. Peru, 2002–03 9. Fiji, 2001–09 Appendix: Other cases Index
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